R. v. SAWCHUK, 2021 BCCA 74, FEBRUARY 22, 2021.
FACTS: The accused was sentenced to a period of imprisonment and ordered to pay restitution in the amount of $55,913.16, for damage done to police vehicles during a high speed chase. He appealed from sentence, arguing in part, that the sentencing judge erred in imposing the restitution order in the absence of evidence of his ability to pay.
HELD: The appeal was allowed. The British Columbia Court of Appeal indicated that when making a restitution order pursuant to section 738(1) of the Criminal Code, “care must be taken not to simply add a restitution order to a sentence of imprisonment that, in itself, is a fit punishment for the crime, as this could amount to excessive punishment and offend the totality principle…In determining a fit sentence, its custodial component must be considered together with any restitution order” (at paragraph 15).
The Court of Appeal also indicated that “[b]efore imposing a restitution order, the court must consider, among other things, both the present and future ability of the accused to pay restitution…Because a restitution order survives any bankruptcy, it should not undermine an offender’s prospects for rehabilitation. For this reason, an offender’s past and future ability to make restitution is an important factor to be weighed and considered, not merely noted by a sentencing judge…If the offence in question involves a breach of trust or is theft-related and stolen money is unaccounted for, the fact that an offender has limited ability to pay restitution will usually be given little weight. A breach of trust is a significantly aggravating factor, and an offender should be deprived of ill-gotten gains…On the other hand, when an accused has not profited from the offence, and the restitution order involves compensation for property damaged in the commission of an offence, the ability to pay becomes a relevant factor in determining whether a restitution order should be made” (at paragraphs 16 and 17).
In setting aside the restitution order made in this case, the Court of Appeal held that the sentencing judge’s “failure to consider the ability to pay is an error in principle” (at paragraphs 19 to 21):
The appellant’s ability to pay a restitution order was not raised at the sentencing hearing. The only issue raised by his counsel at the hearing was whether it was fair to order restitution in the amount of the replacement cost for the new vehicle. He did not suggest that the order in relation to the repairs to the other vehicles was inappropriate.
Given the submissions, it is understandable why the judge made the order he did. That said, the order should not have been made absent some evidence as to the appellant’s ability to pay. If neither the Crown nor defence raises the ability to pay, a judge asked to make a restitution order must make the necessary inquiries before imposing such an order. Section 723(3) of the Criminal Code gives the court the power to require the production of evidence that would assist in determining an appropriate sentence.
Absent any information on the accused’s ability to pay, the judge should not have imposed the restitution order. This Court is in no better position than was the judge. Neither party has provided this Court with any evidence or information as to the accused’s ability to pay. In the circumstances, the restitution order must be set aside. The setting aside of the restitution order does not, of course, prevent the RCMP from bringing a civil action to recover their damages.
